Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-02-17
AT this point court adjourned until

Inc superior court met al 10 O'Clock
and y. g. Bradford, Eco, resumed his
argument for nonsuit in the case Of
Giles vs.. the Diamond State Iron Com
pany. He cited authorities until 11.30
O'Clock, and then began summing up. He
did not think that the ground had been
laid for the case to go before the Jury.
There is nothing, he claimed, for the
jury to go upon. He closed at 70 o'clock.
Mr.. Bird replied to the motion. He
claimed that the other side was irving 10
burden the court with what by all the au-
thorities belongs to the Jury. The points
they have brought out, he said, were
those which were considered Of the very
least Importance by himself and his COL
leage. Are your honors going TO decide
questions of fact? The question of what
is contributary negligence is being re-
garded more and more by the legislators
and law makers Of the various states as o
question to go before juries, and to
be taken out Of the hands OF the
courts. The counsel started out
with the proposition that the
defendant was not liable because ii
was not warned that the building was
dangerous. There never was such a
proposition urged seriously, much less
sustained by any court. Wiihal he an
nounced that proposition, he didn't under
take to maintain 1t Oh law except in two
cases, neither of which begin to sustain
his proposition. The proposition that
the servant must exercise every care, we
may say extraordinary care, is not law.
The servant, of course, assumes the or
| binary risk when he enters upon service.
That is law, and IL is common sense.
But what ia the extent of the risk
he assumes ? That Is TO be
determined from the circumstances sur
rounding each case and that must be
| determined by the Jury. Il cannot be
| declined upon a motion for q nonsuit.
When this plaintiff went upon that build
ing he was bound to use the prudence
that any ordinarily reasonable man would
use, and there his duty ended. Tt will
not be commended that ii was hss duty TO
| inquire whether that wall was nine inches
thick or IL feet thick. Did he not have
| right to assume when he wentyio work
that this defendant would do its
duty2 Must he measure the building
with ruler Is that ordinary care2 II
| a man had to exercise such extraordinary
| care In all cases there would never be a
case where an injured man could recover.
When Simpson told Mr.. Mendinhall, the
president of this company, that he had
rather have that wall four inches thicker,
did Mendinhall exercise ordinary care
Oh, we'll, if that is true, then we had as
we'll give up trying cases for damages.
| In case man went to work at the DUPONT
powder works or went to work coupling
cars on q railroad, wouldn't he as
sumo greater risks than Ferris Giles
assumed when he went TO work on this
building2 The risk is proportionate to
the danger Of the service, and that is o
question for this jury. With regard to
the proposition that if the plaintiff had
equal knowledge with the defendant he
could not recover, Mr.. Bird said that was
both violent and untruthful assumption.
Il cannot be urged that when the presi-
dent of this company had the plans be-
fore him he had only equal knowledge
with man who had worked less than AS
hours on the building. Mr.. Mendin-
hall said in reply to Simpson, 81
know what we want" Yet my friend
argues that the plaintiff had equal knowl-
edge, or equal means of knowledge. What
were the means2 The company had the
plans. The plaintiffs only means would
have been to me asure the various parts OF
this wall with his rule. Is that what Ia
meant by exercising ordinary carer Is
that the duty of the plaintiff. The propo.
sition, he said again, was violent one.
Il was worse-it was untrue.
At this point court took q recess until
o'clock.
The general jury was discharged from
, any further attendance at this term.
Mr.. Bird resumed his argument in the
, Giles case in the afternoon, combating
| the motion for nonsuit. Upon the
question of equal knowledge on the part
! Of the plaintiff with that of the defendant
, he argued that the defendant was thu
party who ordered the length, the high
, and the thickness of the wall. This com
: pany chose to put this building up; the,
/ didn't choose TO employ competen
/ architect. They chose to order thei
i craftsman to make plan for building
tell you where Mr.. Mendinhall woult
r have been and where MIR. Clement b
i Smyth would have been, had they put thi
building up knowing that it iaust fal
q down. They would have been
where they ought to have been--in jail
8 They would have been where Mr.. Budden
\ seik is We are not charging malice, ye
/. the other side threw down that gauntlet
a We pick it up and say that is where the
4 would have been. But this plaintiff di
i not know it. It has not been shown b
4 the testimony that he had ever worked o
a building before. The next assumptio
h is that this building fell from either on
or two causes, either the thinness of tn
l. wall or the fact that one end was lei
4 open. Not at all The reason of the fal
q was the defective construction of th
n building. Doesn't the architect, Chandler
: tell you that the building couldn't hav
n stood long, designed and constructed as
+ was. What monstrous pl OPPOSITION this
!. an assumption by the court sha
a be taken in place OF positiv
. testimony. Now comes the propt
j sition TINT If the defect was pater
a the plaintiff could not recover. But tbs
a ia question which these IL men hav
/ got to answer. That is not questio
"a that the court can answer. There is
n proof in this case that there was pater
"a defect in that building. The defect We
n in construction, and such defects are NJ
patent defects. You or or Ferris Gilt
might look at building for month an
:. vet not know that that building WI
!. detective. But this defendant knew.
Az contend that this plaintiff assumed onl
j. the ordinary risk that man assumes
"a going upon the roof building and thu
Ia the defendant knew that it was imposslo
he for the plaintiff to know unless he be
h. used extraordinary precaution, which
" not law.
~ The law required that this compaI
a. should have made that wall II inches
~ thickness, instead of nine inches in THO
"a ness Mr.. Bird here produced and rel
al from the city ordinances the provisit
mr. recurring that "the outside walls
ot buildings having trussed roofs, If mo
na than 16 feet and less than 25 feet hlg
"a sball average at least II inches in THO
IL, uess.n He then continued: Now, tn
N were not only doing negligent thin
"a Init thew were building building again
II fine law: they were erecting upon the
d land an unlawful building. Do y
~ friends claim that the plaintiff had
, know that. too? Will they claim thi
u, because the workman was ignorant Tn
la. the building was not within the law.
al. cannot recover for injuries sustained
a. that building? Hardly. There is I
Nc ordinance. The most that can be elaine
MI that could under any circumstance
All claimed, is that this question must
mr. submitted to Jury. The assumption
- 10 what the facts were and what
he plaintiff must have known in matters
ase contributary negligence must be iett
AN the consideration Of the jury.
saa Mr.. Bird here entered upon the citati
I'VE of authorities, which occupied the
Of mainder of the afternoon session, ana
in moi finished when court TOOK q rec
His until Tuesday morning.